Having a baby isn't always straightforward. Unfortunately, neither are the legal rights that exist for women who are pregnant or on maternity leave. And despite recent attempts by the Government to simplify maternity rights, the law remains complex.

In this article, the Head of Equal Rights at Thompsons, summarises the law and answers some commonly asked questions.

The law

It's directly discriminatory for employers to treat a woman less favourably than a man just because she's pregnant. And as there's no defence, there's no way of justifying it.

That means that it's unlawful to refuse a woman a job because she's pregnant, even if the job is short term and she'd be absent on maternity leave for most or all of the duration of the contract That protection lasts for the whole of the pregnancy and continues during maternity leave. Other rights - to maternity leave, pay and other benefits - are governed by a separate statutory code of maternity rights set out in the Employment Rights Act 1996 and related maternity regulations. In addition the woman may be entitled to other benefits in her contract of employment.

In addition to all that, the amended Maternity and Parental Leave Regulations 1999 set out rights for biological and adoptive parents of 13 weeks' unpaid parental leave. New paternity regulations allow a father, or adoptive partner, to have two weeks' paternity leave at the time of birth, paid at a flat rate of £100 per week. Finally, new adoption rules allow adoptive parents to take paid adoption leave, which are very similar to maternity leave and pay.

Frequently asked questions

  • Does a woman have to tell a prospective employer that she's pregnant before accepting a job offer?
    There is no legal obligation on a job applicant to tell a prospective employer that she is pregnant. If an employer asks in an interview if a woman is pregnant and then does not offer her the job, a tribunal may well make a finding of unlawful direct discrimination. The same principle applies even if the job is short term, or to replace someone else on maternity leave.
  • If a prospective employer finds out that a woman is pregnant and decides not to offer her a job, what can she do?
    If the woman can prove that the reason for not offering her the job is because she is pregnant, then she'll be able to argue that the decision is unlawful and she should be offered the post. If the employer refuses, she has three months in which to lodge a claim for unlawful direct sex discrimination.
  • What questions can an employer legitimately ask a woman at interview?
    It is direct sex discrimination for employers to ask questions about a woman's plans to have children or their child care arrangements, if similar questions aren't put to a man. To find out what questions were asked at interview, you can request copies of interview notes in a Sex Discrimination Act Questionnaire.
  • If a woman is dismissed when pregnant or on maternity leave, what are her rights?
    It is not automatically unfair to dismiss an employee who is pregnant or on maternity leave. However, if it can be shown that that was the reason for the dismissal, then it's unlawful direct sex discrimination as well as automatic unfair dismissal (so no service requirement is needed). Similarly, it is not automatically unfair or discriminatory to make a woman redundant when she is pregnant or on maternity leave, unless it can be shown that the reason for selecting her for redundancy was because she was pregnant or on maternity leave.
    If a woman is selected for redundancy when on maternity leave, she has the right to have first pick of any suitable alternative job vacancies.
  • What are the woman's rights to holiday on maternity leave?
    A woman can't usually take paid holiday during maternity leave. However, during the first 26 weeks of ordinary maternity leave (OML), she still has the right to accrue annual leave.
    This means that although a woman can't take paid holiday during OML, she can take it some other time. And the period of OML itself counts towards entitlement. She also doesn't have any automatic legal right to public holidays - that will depend on the terms of her contract of employment. Additional Maternity Leave (AML) lasts for up to 26 weeks and follows on from OML. During AML a woman has no rights to accrue holiday, unless her contract of employment says she does.
    Under the Working Time Regulations, which provide for four weeks' paid annual leave, a woman will continue to accrue entitlement during unpaid periods of absence from work. This should also apply to maternity leave, whether OML or AML.
  • What rights do women have to work reduced hours after maternity leave?
    If a woman wishes to work flexibly on her return to work, the new Flexible Working Regulations 2003 may help, though if an employer refuses her request, a tribunal is unlikely to interfere with that decision. And even if it does, compensation is limited to eight weeks' pay.
    The Sex Discrimination Act 1975 is more likely to be of help. That's because any policy or decision by an employer which affects a greater proportion of women than men (such as a refusal to allow flexible or part-time work) is likely to amount to indirect discrimination requiring objective justification by the employer. And if the employer cannot come up with a justification, then it's likely to be unlawful.
    The advantage of pursuing a claim for indirect discrimination in these circumstances is that a tribunal will require the employer to objectively justify any potentially discriminatory practice, and compensation is unlimited.
    If an employer has a policy of allowing women to work flexibly but not men, this may amount to direct discrimination against a man.
  • What is the position if a woman is too ill to return to work?
    Once an employee's entitlement to maternity leave has expired at the end of OML or AML, the employee has to return to work under her contract as normal. However, if she is too ill to return, then she becomes entitled to sick leave and sick pay under her contract of employment in the usual way.
  • Do women have to repay maternity benefits if they don't return to work?
    A woman is not obliged to repay any statutory maternity pay if she decides not to return to work. However, some contracts of employment state that any contractual maternity pay, over and above the statutory minimum, has to be repaid if an employee does not return to work after maternity leave.